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Lawyer shows up seven minutes late, judge starts without him

The entire federal appeals court in Atlanta was in unanimous agreement that a criminal defense attorney’s seven-minute absence from the courtroom violated Alexander Roy’s constitutional right to counsel.

But in a recent 8-3 decision, with a remarkable outpouring of opinions, the 11th U.S. Circuit Court of Appeals upheld Roy’s conviction on grounds his attorney’s absence amounted to a harmless error.

“(Roy) received a fair trial although not a perfect one,” Chief Judge Ed Carnes wrote for

Chief Judge Ed Carnes

the majority.

The evidence of Roy’s guilt was “overwhelming,” Carnes said. Applying the harmless-error rule, he added, “serves vital interests, chief of which is conserving scarce judicial interests by avoiding pointless retrials.”

The 281-page decision was among the lengthiest the 11th Circuit has issued in decades. It included the 127-page majority opinion by Carnes, concurring opinions by four judges (Gerald Tjoflat, Bill Pryor, Robin Rosenbaum and Adalberto Jordan) and dissents by three (Charles Wilson, Beverly Martin and Jill Pryor).

Wilson’s 58-page dissent said Roy deserves a new trial. His counsel’s absence was a structural defect in the proceedings because it involved the introduction of incriminating evidence that went to the heart of one of the charges, he said.

Judge Charles Wilson

“This type of one-sided proceeding is an affront to the integrity of our system and a violation of the defendant’s rights to a fair trial and to counsel,” Wilson wrote.

Roy’s trial was held in June 2012 in Ft. Pierce, Fla. The middle school teacher, ensnared in a law enforcement sting, faced one count of attempting to entice someone he believed to be a 13-year-old girl into a sexual encounter. He also faced four counts of possessing child pornography. He was convicted of all counts and sentenced to life in prison.

On the third day of trial, U.S. District Judge K. Michael Moore recessed for lunch, saying the trial would start back up again at 1:30 p.m.

The overly prompt jurist reconvened the trial at 1:29 p.m., and, when he did, defense attorney Jay Kirschner had yet to return from lunch. In fact, Kirschner didn’t reenter the courtroom until seven minutes later.

During his absence, a computer forensics expert testified for the prosecution about

Criminal defense attorney Jay Kirschner

images of young girls found on Roy’s computer.

In the majority opinion, Carnes detailed how little of the trial Kirschner had missed:

Seven minutes of a six-day trial that lasted 1,884 minutes or 31.4 hours — less than 1/2 of 1 percent of the trial.

Eighteen answers out of approximately 2,745 answers of testimony given by government witnesses against Roy — less than 1 percent of the total.

A small part of the testimony of the 12th of 13 government witnesses.

Carnes also noted, “And the little testimony that counsel had missed was repeated in even more detail by the same witness after counsel returned to the courtroom.”

What the April 26 decision did not detail was how or why the trial restarted in Kirschner’s absence. But Carnes, citing an early exchange between the judge and the jury, noted it was not supposed to happen.

U.S. District Judge K. Michael Moore (Photo: Federal Bar Association)

“If we are missing just one of us — you, me, the lawyers — we can’t get started,” Miller told jurors before the trial began in earnest.

But that didn’t happen after the lunch break on the third day of trial.

“Whatever the circumstances surrounding it, and regardless of who knew what and when they knew it, we do not condone the taking of any inculpatory testimony in the absence of defense counsel,” Carnes wrote. “It is constitutional error, which should be avoided.”

“I would hope that no district court in this circuit would ever begin or resume a trial without defense counsel being present,” he said. “If a lawyer is late, a district court can employ other remedies to solve that problem.”

The decision by the full 11th Circuit court replaces an August 2014 decision by a three-judge panel that granted Roy a new trial. The 2-1 majority opinion was written by Wilson and had a vigorous dissent by Carnes.

Now, with the tables turned, it was no surprise that Carnes and Wilson spent a great deal of time taking shots at each other’s positions.

Wilson took exception to Carnes’ mention of the costly, seven-month-long trial against former Panamanian dictator Manuel Noriega, who was convicted in 1992 of racketeering and drug distribution charges.

What if it were later shown that Noriega’s lawyer was out of the courtroom for seven minutes, “or even half a minute,” during the seven-month trial and missed inculpatory testimony that was repeated after the attorney returned, Carnes said. You don’t set aside the verdict and repeat the trial with a new jury, even when it can be shown Noriega’s lawyer’s brief absence was harmless, he said.

“Well, what about him?” Wilson wrote, referring to former Panamanian ruler.

“Presumably, if irreparable constitutional error occurred in a trial — whether it be the trial of Manuel Noriega or anyone else — we would reverse and remand for proceedings consistent with what the Constitutional requires,” Wilson wrote. “It is simply what we, as judges and guardians of the Constitution, are required to do. No matter how bad the defendant; no matter how egregious the crime; no matter how long the defendant’s trial lasted.”

As for Roy, he “received a trial that was neither perfect nor fair,” Wilson said.

Judge Jill Pryor

Jill Pryor, one of the court’s newest members, stated the obvious in her dissent.

“We have spilled a great deal of ink sorting out whether and why this violation does or does not give Mr. Roy the right to a new trial,” she wrote.

But the jury heard testimony “that directly incriminated him” during his lawyer’s absence, and for this reason Roy’s conviction should be reversed and a new trial ordered, she said.

In response, Carnes noted that “countless other criminal defendants” whose trials were less than perfect did not get their convictions reversed.

“This defendant, although he is entitled to the full protections of the law, is not entitled to special treatment,” Carnes said. “Because the Sixth Amendment violation that occurred during his trial was harmless beyond a reasonable doubt, his conviction is due to be confirmed.”

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